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Amazon Indigenous Groups Fight New Law That Would Allow Foreign Companies on Their Land

Darrin Mortenson

4/16/12

It has been said that oil and gas companies follow a bible of sorts here in the jungles of Peru, a universal playbook of their most effective methods for convincing locals that a project will bring them development or—if the locals can’t be convinced of that—to get their way through less benign tactics.

The playbook, a spin-off of tactics that date back in spirit to the conquistadores, has worked well until recently, when Indigenous Peoples started comparing notes. Now they’re calling those companies out, often appealing to international law, collaborating with environmentalists and other international observers, and using the Internet to warn others of a threat—and always maintaining the tried-and-true option of direct action in case words don’t work.

That’s what happened in late February when leaders of the Awajún people of the Peruvian Amazon province of Datem del Marañón publicly outed the Spanish oil company Repsol for conducting so-called “clandestine workshops” inside Awajún territory to win hearts and minds. Such hand-slapping is happening more frequently these days in Peru as Indigenous Peoples ally with environmentalists and human rights organizations to demand their rights under international law. Their profoundly informed debate over the new Law of Prior Consultation for Indigenous and Original Peoples is more evidence of that trend.

Wild West No More

In a complaint published as an alert on the website of the Amazonian indigenous alliance AIDESEP on February 18, the Awajún accused Repsol of “bad practices” and said the company was acting “behind the backs” of the indigenous authorities, gathering villagers in secret meetings without permission from the apus (chosen leaders), thereby subverting the traditional process by which the Awajún decide issues affecting the tribe. They demanded that Respol immediately cease negotiations, and sought the intervention of the government, according to their statement.

They said the government, under international law, is supposed to protect them from predatory companies against whose playbook and war chests they often stand little chance. According to the U.N. Declaration on the Rights of Indigenous Peoples, to which Peru is a signatory, the government is responsible to consult with and derive consent from Indigenous Peoples on whose territories it has offered contracts and concessions. It is also required to mediate disputes.

Repsol wants to tap oil wells in Lot 109, just one of the many oil concessions that now cover more than 75 percent of the Peruvian Amazon and overlap important areas set aside for nature reserves, communally held indigenous territory or as sanctuaries for voluntarily isolated tribes. More than 65 percent of communally held indigenous territories in Peru’s Amazon region are included in those concessions. A few months ago Repsol announced that it plans to sink up to $3 billion into its Peruvian oil and gas operations over the next five years, just one such investment in Peru’s energy sector boom that observers say could double the industry’s oil and gas production over that same period of time.

Resource Wars

Workshops on how to beat the oil companies started in January.

But the Awajún are no pushovers when it comes to foreigners tromping around on their land, much less drilling and spilling and cutting up the forest for roads. In 2009, after nearly a year of protests and talks over presidential decrees that would have given extractive industries less restricted access to ancestral lands under the pretense of the free trade agreement with the U.S., thousands of Awajún and neighboring Wampi villagers blocked rivers and roads and shut the profiteering down. After several days of violent government reprisals, including sniper attacks and helicopter strafing, protesters had killed some 24 police and paramilitaries who were deployed to restore the untenable status quo.

Again, as in 2009, the Awajún are trying talks first, broadcasting violations to the public and filing complaints with Peru’s official public Ombudsman, the Defensoria del Pueblo, and with the top ministers of the environment, energy and indigenous issues.

In Peru, the Awajún are far from alone. Repsol’s alleged actions and the Awajún’s quick and public response is just a glimpse of the wider debate about how foreign companies get to search for and exploit resources on and under indigenous lands in Peru, where the government owns subsurface resources such as minerals, oil and gas.

Consultation: How And for Whom?

The struggle of the Awajún can be seen as a symptom of what can happen when the state declines to resolve issues fundamental to the lives and livelihoods of Peru’s Indigenous Peoples and the nation as a whole.

As the Awajún struggle against Repsol along the Marañón, leaders of Peru’s mosaic of Indigenous Peoples—from the Andes to the Amazon—are locked in a high-stakes scrum over the implementation of a new law that could be critical to their survival on traditional lands. Whether the impasse dissolves into conflict depends largely on the actions of the Presidency of the Council of Ministers (PCM) who have sided with big business in recent conflicts.

Drafted by the new administration of Peruvian President Ollanta Humala last summer, and passed by Peru’s Congress in early September, the Law of Prior Consultation would require the Peruvian government and companies to consult indigenous communities before digging mines or drilling for oil in their territories—projects that, in the past and in a litany of examples today, have benefitted outsiders in the short-run but often at a long-term cost to locals in terms of environmental degradation and health.

“[The] Law of Consultation is fundamental in terms of the recognition of indigenous rights, and also with respect to what they decide to do in terms of development in their territories,” says Roger Rumrill, author of at least 30 books on the Amazon and perhaps Peru’s best-known expert on the region’s peoples. Rumrill, who has advised Humala on indigenous issues, spoke with the nonprofit advocacy group Alianza Arkana during the public elation over the passage of the law last fall. “[Indigenous Peoples] are going to participate in this law and their participation is very important,” he said, adding that of Peru’s estimated population of 29 million, at least 10 million are Andean and Amazonian indigenous people—roughly 43 percent. “It’s not a minority,” says Rumrill. “This law…is a historic moment for indigenous Andean and Amazonian communities.”

Locals say the Ucayali River is being poisoned by oil spills and chemical dumps.

Early on, however, Rumrill and other observers spotted potential pitfalls within the law and warned that it risked being a “dead law” if it did not have the teeth of very specific language and the bite of enforcement. “From 1921 to 1990 there have been 1,800 laws passed regarding Amazonian development—as many laws as there are forests. But they are dead words. So we don’t have illusions that the law itself can change the situation,” he told Alianza Arkana in the fall. “This law can only change the situation if the state executes and completes it, and also if the indigenous people unite, form positions, watch out for and ask that the Peruvian state follows through with and executes the law.”

The Fine Print

In the past and as things now stand, the government often leases concessions without community input and then lets the companies and communities hash it out, deploying crack teams of business-friendly negotiators or even government troops when things get hairy. The structural injustice of pitting Indigenous Peoples against multibillion-dollar multinationals is as obvious as it is real—a lived experience of former colonial subjects that makes them ever “painfully aware of the mortality of wealth that nature bestows and imperialism appropriates,” as Latin American scholar Eduardo Galeano once wrote.

The consultation law was heralded as a radical break with the past, a significant step that brought Peru’s Indigenous Peoples under the protections of the Peruvian Constitution and progressive international law, such as the International Labor Organization (ILO)’s Convention 169 and the U.N. Declaration on the Rights of Indigenous Peoples. But indigenous leaders immediately saw the potential for a boondoggle; the law contained many flaws, including language vague enough to leave open for interpretation whether Indigenous Peoples have a right to approve or deny a deal or are merely to have a token place at the table of a done deal.

It also leaves contested terms for who is considered indigenous and who is not—muddy waters not made any clearer by the indigenous groups themselves. Heavily indigenous communities in the Andes, for example, call themselves “original communities,” while in the Amazon they often call themselves “indigenous” or “Native.” Adding to that is the historical process of state-formation in which ethnically Indigenous Peoples have identified as campesino or even just pobre—poor—so that they can access state services such as education and health care.

Nothing New Under the Inca Sun

Of course, leaving such important decisions to transnational corporations or the state didn’t sit well with many indigenous leaders who’ve had 500 years to figure out how the dominant system works. So, after holding a series of intense workshops in half a dozen Peruvian cities over the past 90 days, indigenous delegations from across Peru finally met in Lima this month to fine-tune regulations in a self-imposed democratic process of the type they’ve historically been denied.

And there, in Lima, they got stuck.

The two main blocks representing indigenous groups are now at loggerheads over whether to reject and change the law first or accept the law and continue rewriting the implementing regulations—or to work toward both at the same time. The latter, including groups representing Shipibo people of the Rio Ucayali and several prominent groups from the Andes, say the law is a success, marking hard-won progress and can be refined once it’s on the books. They say this could only have been achieved under the current administration. Don’t look a gift llama in the mouth, the thinking goes.

The government seems to be listening to the block wanting to accept the law as is, leaving the others to cry foul and ask whether their participation might be an example of how consultation itself might work, calling the whole process a “new face on old practices.”

The government vice minister in charge of the process, however, characterized the chasm between viewpoints as a few “minor points” of difference.

Time to Decide

“We have said from the beginning that you can’t provide regulations for a law that is unconstitutional,” said Alberto Pizango, the president of the majority Amazonian indigenous alliance AIDESEP, according to Dow Jones.

Along with AIDESEP, the National Agrarian Confederation of Peru and the National Organization of Andean and Amazonian Indigenous Women of Peru also want the law changed to include measures that, for example, would apply to existing contracts as well as new ventures. In early March, that block requested an additional month to settle differences with the other indigenous federations. They also requested that the Inter-American Commission on Human Rights monitor the process at hand.

“They’ve set themselves up for a fight,” says Kukama indigenous leader Alfonso Lopez, whose federation of 57 communities from the lower Marañón River Basin sided with AIDESEP.

Asháninka indigenous leader Ruth Buendía Mestoquiari, president of the Central Asháninka del Río Ene, said that the law as written “does not have the spirit” of international law (citing ILO Convention 169 and the U.N. Declaration on the Rights of Indigenous Peoples).

Buendia’s federation filed a legal injunction against the Peruvian Congress and the Peruvian Ministry of Foreign Relations to halt an energy agreement that Peru could soon sign with Brazil that would build a series of dams and other hydroelectric projects, displacing thousands of indigenous and nonindigenous people, including uncontacted tribes.

“The rights to life, integrity, freedom, lands and free prior informed consent of Indigenous Peoples are threatened, as the agreement was never subject to consultation with Indigenous Peoples,” David Velasco, an attorney for the Asháninka from the legal nonprofit Ecumenical Foundation for Development and Peace, said in a statement released on March 1. “Peruvian and international law mandates that Indigenous Peoples need to be consulted in matters related to development projects on indigenous lands, and that has not taken place.”

Meanwhile, as the debate over consultation rages on, the Asháninka and Awajún face the prospect of at least 20 dams planned for the Marañón River alone, making the hotly debated particulars of the new law a matter of life and death. Likewise, in the Andean north, the massive $4.8 billion Conga mine project remains at a standstill over similar concerns. The U.S. company Newmont Mining’s gold and copper mine near Cajamarca would destroy alpine lakes and wetlands above several watersheds that eventually drain to the Amazon River. Residents say they were not properly consulted—they did not have enough time or technical expertise to analyze the project or fully participate in the process that led to the project’s approval by the Peruvian government of former President Alan Garcia in 2010.

Echoing AIDESEP, Peru’s Defensoria del Pueblo has also asked the PCM for more time for the parties to decide. Last month the agency reported that of some 228 social conflicts in Peru, more than half involved natural resources.

As it is, says Amazon expert Rumrill, the consultation law “contains elements introduced in the companies’ interests at the expense of the Indigenous Peoples.

“The debate over the consultation law is returning to square one,” he said.

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